Are juries equipped to decide the fate of complex libel cases?

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The failure of the jury to reach a verdict in the High Court libel
battle in which Gary Lineker and The Sunday Telegraph were sued by
Liverpool’s Harry Kewell poses important questions over the way libel
actions are run.

The most fundamental of these is whether more libel actions should
be left in the hands of judges rather than be decided by juries who,
while they might have a grasp on the facts of life, are ill-equipped to
cope with difficult legal questions for which they have no training.

And if juries do sit, what questions should lawyers be allowed to ask them as they debate their conclusions?

The starting point with defamation actions is that, as more or less a matter of course, they are dealt with by juries.

However,
as an early preliminary in the run-up to the case being heard, both
sides – or even the judge – can seek to have the matter dealt with by a
judge alone. Ultimately, it is then a matter for a judge to decide if
agreement cannot be reached.

As far as the questions for the jury
are concerned, these are framed by the lawyers involved in the case and
approved by the judge before they are put to them.

The Kewell
case centred on his belief that he had been libelled in a Sunday
Telegraph article focusing on his transfer deal from Leeds to Liverpool.

Lineker told the court that although he had not physically written the piece, he had “narrated” it to journalist Clive White.

On
the face of it the subject matter does not appear to be complex. The
Sunday Telegraph team argued in its defence that the piece was not
defamatory. And it claimed that even if it did meet the requisite test
for defamation it was protected on the basis of the defence that it was
“fair comment”.

The case, before a jury of six men and six women,
lasted six days. The complexities began to arise when they were asked
to grasp the concept of “fair comment”

– not the easiest area of
the law for a lay person to come to terms with Having been given a
run-down on the definition of a defamatory statement, they then had to
come to terms with the fact that even if they decided the statement was
defamatory it could still be regarded as “fair comment” and that would
get the defendants off the hook. Thus, the apparently straightforward
case had gone up a level in complexity.

The first inkling that
things in the minds of the jury were far from clear came about
two-and-a-half hours into their six-hour retirement.

They sent a
note to Mr Justice David Eady, the country’s senior libel judge who
presided over the case, asking him to explain the meaning of defamatory.

This
had, of course, been explained to them during the hearing, but it is
impossible not to have sympathy for the 12 people, some of whom had
probably never been in a court room in their lives, to try to get to
grips with all the facts and legal explanations thrown at them.

When
the note came in the judge explained it again, but the very fact the
question had to be asked poses a major doubt over whether actions of
this sort of complexity should ever be left to a jury, or whether they
should be dealt with by the judge sitting on his own.

In fact Mr
Justice Eady sat on the case in which George Galloway sued the Daily
Telegraph without a jury last year. Obviously in this case Kewell’s
lawyers went for a jury and Lineker’s went with them.

The full
complexity of what the jury were being asked to decide, and the
difficulties of the task confronting them, becomes fully apparent when
we look at the questions they had been asked to answer by the case
lawyers.

There were six questions in all (see box above), though
the jury never got beyond the first one. If the answer to it had been
“no”, it would have dealt a knock-out blow to the action.

Had
they managed to reach an answer of “yes” to that one, given the nature
of the follow-on questions we might still have been waiting for a
verdict on the others now.

How the lawyers who framed those
questions, or the judge who approved them, expected the jury to cope
without becoming confused is difficult to fathom.

There must
surely be an argument for closer examination of the subject matter of a
libel case and the law relating to it beforehand, of anticipating the
sort of situation that occurred in the Kewell case, when it is clear
that questions of this sort of complexity are going to result.

How the jury lost its way

SIX QUESTIONS THEY HAD TO ANSWER

1 Is the article defamatory of Harry Kewell?

2 Does the article mean

(A) that Harry Kewell had
discredited himself by willingly participating in a deeply
dishonourable and financially dubious transfer from Leeds to Liverpool
(or a less serious meaning to a similar effect)? YES/NO

(B) that Harry Kewell had
naively and stupidly allowed Bernie Mandic, his agent, to manipulate
him to his financial detriment (or a less serious meaning to a similar
effect)? YES/NO

(C) that Harry Kewell had
cunningly and disloyally circumvented the rules prohibiting players
from entering into transfer negotiations before the final calendar year
of their contract by instructing his agent to enter into negotiations
with Liverpool prior to this date without the knowledge and consent of
Leeds United (or a less serious meaning to a similar effect)? YES/NO

3 Does the article make the comments:

(A) that Harry Kewell had been naive in allowing his agent to make £2m out of the claimant’s transfer deal? YES/NO

(B) that Harry Kewell needed his head examined if he was happy for his agent to make such a huge profit at his expense? YES/NO

(C) that Harry Kewell did
not emerge with any credit from the circumstances surrounding the
transfer as a result of (A) and/or (B)? YES/NO

4 Is there a sufficient factual basis to support the comment(s) to which you have answered “yes” in question 3 above?

(Please give a separate answer, “yes” or “no”, for each comment.)

5 If your answer to 2(a), 2(b)n
and/or 2(c) above is “yes”, do you conclude that Harry Kewell has been
defamed in a sense outside the scope of fair comment (that is, beyond any comment(s) to which you have answered “yes” in questions 3 and 4 above)?

6 If you conclude that Harry Kewell has been defamed (as above), how much do you award him by way of damages?